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A Penchant for Secrecy

As discovery begins in our public-interest antitrust litigation, the defendants have wasted no time throwing up roadblocks that will burden and wear down our nonprofit group, Utah Newspaper Project. We invite you to read the dueling memos on the defendants’ request for a protective order, and ponder the irony of news media organizations taking the default position that court records should be kept secret … just because they say they should be. 

(Links to both sides’ memoranda can be found at the top of our home page at utahnewspaperproject.org.)

To protect the public’s presumptive right to access, Utah’s federal court has adopted a “standard” protective order that requires attorneys in a case to be highly selective in filing documents under seal, plaintiff’s counsel Karra Porter notes in her memorandum filed Friday.

Our group accepts the “standard” approach to the designation of confidential material, which could apply to a number of business matters such as trade secrets. Materials legitimately deemed confidential would certainly remain so as far as we’re concerned. (Our group believes in following the law… that’s what our public-interest litigation is all about.) But the defendants should bear the burden for identifying what they allege should be deemed confidential. 
Under the alternative order proposed by the defendants, our small and very young nonprofit would bear the burden of ferreting out and identifying non-confidential material within the hundreds of thousands of pages of documents produced in the case. Further, if a single sentence in a document could arguably be deemed confidential, under the defendants’ proposal the entire document would be hidden from view. 

The word “Kafkaesque” comes to mind to describe our predicament under the defendants’ approach.

And be assured, reviewing the documents under the defendants’ proposed rules would be burdensome considering the volume of evidence to be produced. In their memorandum seeking a non-standard protective order, attorneys for the defendants note that they have provided 250 banker boxes full of documents to the Justice Department’s antitrust division, representing about 500,000 pages. The defendants also note in their memorandum that they have already screened the records for the purposes of relevance and privilege. Thus, “it sounds as though Defendants have already completed much of the review work that the standard protective order would require,” Porter writes in the plaintiff’s response. 

The public interest in openness and transparency in this case is manifest. “Plaintiff has alleged several violations of antitrust law, and that such violations are aimed at, or will have the effect of, shuttering the Tribune,” our memorandum states. “The public has a right to know why and for what purpose the Salt Lake Tribune and the Deseret News would enter into a Joint Operating Agreement aimed at closing one of these two publications. That includes a right to transparency of non-confidential information.” (The JOA at issue, negotiated and signed in secrecy in late 2013, has cut Tribune revenue in half. Its section titled “reserved matters” spells out in great detail the procedures to be followed for winding down and ceasing publication of the Tribune. There is no corresponding language about the Deseret News.) 

The defendants’ attempt to shift the discovery burden to the plaintiff group is not justified, Porter argues. “Defendants are, plain and simple, trying to jam Plaintiff, which Defendants know to have limited resources.” And as one of the volunteer board members of our group notes, such possible “jamming” would not be right. And he’s in a position to know. He served six years on the Utah Bar Ethics and Disciplinary Committee.

And speaking of our all-volunteer group, here is another baseless argument raised by the defendants in their motion for a protective order against us: “The Court should also note that in the course of negotiating a modified protective order, Defendants agreed to substantial concessions, including a concession by Defendants that even though the Plaintiff had no “employees,” a select group of its members consisting of its board of directors could review confidential information."

So, by allowing our all-volunteer board (aka the plaintiffs) to see the documents -- rather than some "employees" of our all-volunteer organization -- the defendants are making a substantial concession. That should give you an idea of how unaccommodating these guys are being…if this is their example of how accommodating they are being.
 

An example of "market harm"

"Read All About It"

That's what the advertisement that the Deseret News refused to run said. There were no offensive words. No pointed accusations. Not even a mention of the Deseret News. We made every effort to compose an ad that would get an OK from the News’ publisher. But on Saturday morning our ad appears only in The Tribune. And we paid a premium -- $1,845.00 – because it is an advocacy ad.

Our ad copy doesn’t say very much, but it does send this message: If you are an advocacy organization with a viewpoint the Deseret News does not agree with, you will be denied an advertising platform if The Tribune exits the market. Our ad adventure with the Deseret News demonstrates harm to our marketplace of ideas from this new Joint Operating Agreement. It also demonstrates consumer harm -- because when an ad reaches only 60 percent of the combined newspapers’ subscribers, the rate charged should not be 100 percent.

Deseret News: We are owed an explanation. And a rebate.

Origins of the Battle Between Trib, Deseret News

 

Quoting "pahvou@yahoo.com"It's interesting that you are opening up this battle of newspapers once again. After reading the project I felt you omitted some critical issues. To begin with the Newspaper War of 1947, when the Deseret News strategically maneuvered the Mormon Church into a competitive newspaper drive, that violated almost every guideline set by the ABC. This small matter seemed to have no impact or concern of the Deseret News at the time until reaching deep into the coffers of the Church where a slight problem occurred. It is true the Deseret News had exhausted its financial resources and was deeply in debt, but that wasn't what concerned Church attorneys as much as the concern about the use of Church funds to support this drive. This is when it dawned on them using tax-exempt money to support a non-tax exempt business, designed to drive out a competitor, could jeopardize the Mormon Church's tax-exemption status. This is the reason for the surprise visit to Gus Backman, secretary of the Salt Lake Chamber of Commerce, who incidentally was convalescing in a hospital bed at the time, by Church President David O. McKay and John Fitzpatrick, asking Backman to assist in forming a JOA, but also surprisingly structuring it so the Tribune, under Fitzpatrick and later Jack Gallivan, would have control of it.

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Email 12/6/2013 11:52 AM

From: Curt
To: contact@utahnewspaperproject.org
Date: 12/06/2013 11:52 AM

This whole maneuver between the D.News/Church and Media One/Tribune is very confusing. I would like to know the "real" story behind the scenes.

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Email 11/5/2013 10:16 AM

From: Susan
To: contact@utahnewspaperproject.org
Date: 11/05/2013 10:16 AM

I read everything last night. This is big! I've always been a fan of the Tribune, and do not support what has happened. Between me and you,

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Email 10/25/2013

From: contact@utahnewspaperproject.org
To: Robyn
Date: 10/25/2013 01:56 PM

Well, things have gone from bad to worse at The Salt Lake Tribune, which just re-negotiated its joint operating agreement with the Deseret News.

I'd love to hear your thoughts. 

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